Ward Gethin Solicitors’ Neil John brings us up to speed on how to use the Small Claims Court.
What is the Small Claims Court? Any claim for a monetary sum is usually dealt with by a County Court and is allocated to a “track” depending on its value and complexity. The Small Claims Court is therefore part of the County Court and any such claim is issued in exactly the same way as claims of higher value, and is decided by the same judges who deal with higher value claims.
However, due to the relatively low value of these claims, the Court rules are less stringent and the hearing itself is less formalised. For instance, in a higher value personal injury claim of £10,000, the matter would probably be placed in the Fast Track, which deals with claim values of £1,000 to £15,000.
The rules regarding evidence are stricter. In these cases, the Court gives directions (a timetable) for exchanging witness statements and if no statements are supplied as directed by a party to the claim, that party would be prevented from using any evidence at the trial of the case.
The basic principle of the Civil Procedure Rules (CPR) is that each party should see the strength of the other’s case before they commit to a trial at potentially considerable expense. The overriding objective of the CPR is that cases should be dealt with fairly and justly. This is why witness statements are normally exchanged between the parties well before the trial.
While the same rules may apply to a set of small claim directions, it is up to the Judge who hears the case whether he/she allows evidence in at a late stage. I was once involved in a small claim where the claimant complied with directions and provided witness statements in support of his case and the defendant did not. The judge allowed the defendant to rely on live witness evidence given at the trial, despite bitter objections from the claimant that the defendant had not produced statements prior to the hearing. The judge preferred the defendant’s evidence and the claim was struck out.
The running of a small claims hearing depends a great deal on the judge who presides over it. Some judges like to sit and listen to the evidence in almost silence before making a decision, while others actively ask questions of those giving evidence. Rest assured that whichever judge hears your small claim, he/she will already have read all the papers on the court file.
Small claims are also usually dealt with ‘in chambers’ rather than in a courtroom. Chambers are usually a smaller room with tables arranged in a “T” shape with the judge sitting at the top and the parties sitting at either side. It is highly unlikely that the judge or any lawyers will wear wigs and court robes in chambers, only a normal suit and tie.
One thing which must be borne in mind is that legal costs are generally not recoverable in the Small Claims Court other than court fees and certain expenses.
What is a small claim? There are two small claims limits: 1. In a personal injury claim, the value of the injuries is less than £1,000 2. In a non-personal injury claim, the value claimed is less than £5,000. How do I make a small claim? As stated above, a small claim is started in the same way as other county court claims. A person wishing to issue a claim must complete a claim form.
This form contains the following information: 1. The name and address of the claimant and defendant 2. Brief details of the claim such as the date the action arose and what the claim is about, for example a road accident or contract dispute 3. The value of the claim 4. The issue fee and any costs claimed 5. The Particulars of Claim.
The issue fee depends on the amount being claimed and is effectively a sliding scale; the more you are claiming the higher the issue fee. These fees change from time to time and up-to-date fees are available on the Court Service website or your local county court. Any claim for personal injuries must be accompanied by a medical report identifying the injuries sustained.
The Particulars of Claim is the claimant’s statement of case – they should contain a description of the alleged wrongdoing or breach of any right or contract. If applicable they should also contain a claim for interest on money owed or damages claimed. There is a space on the second page of the claim form to write the Particulars of Claim in, or you can prepare them on a separate sheet of paper. The Particulars must be confirmed by a Statement of Truth.
Signing this statement is the same as giving evidence under oath and should not be signed lightly. If a person signs a Statement of Truth knowing the facts to be incorrect, this may be deemed perjury (lying to the court) which is an imprisonable offence.
To issue the claim you must send three copies (one for you, one for the court and one for the defendant – plus an extra copy for each extra defendant) of the claim form, Particulars of Claim together with the issue fee to the court and a covering letter asking the court to issue the claim and serve it on the defendant. If the defendant is a Limited company, the claim should ideally be served on the defendant at its registered address.
Once issued, the claim is deemed to be served on the defendant two days after it is posted by first class mail. The defendant has two weeks to file a defence or acknowledgement of service indicating whether all or part of the claim is disputed. If the latter is filed, the defendant has 28 days from service of the claim form and particulars of claim to file a defence.
If neither is received by the claimant within two weeks of service of the claim, or the defendant files an acknowledgement but no defence within four weeks, the claimant can request judgment be entered in default, which means the claimant wins the case.
If the court receives a defence within the time specified, it will send out Allocation Questionnaires to each party and a date they have to be returned. This questionnaire allows the court to make a decision on how the case is to be managed. Both the claimant and defendant complete a questionnaire and one of the first questions is which track the claim should be allocated to. The three tracks are Small (for claims of under £5,000 or personal injury claims under £1,000), Fast (£5,000 to £15,000) and Multi (over £15,000).
If the claim is for over £1,500 the claimant has to pay an allocation fee (currently £100) when filing the questionnaire. The questionnaire also has a section in which the parties can identify any witnesses they wish to use and any experts they have reports from.
Once the court has considered the questionnaires, it will allocate the claim to a track and give directions. If the claim is listed to the small claims track the usual directions are:
1. The parties file (at the court) and serve (on each other) any witness statements and other documents they wish to use at the trial by a certain date. 2. Give a date or time window for the trial and a time limit (usually two or three hours) for the trial.
The case will then be heard at the appointed date and time and the judge will decide the case after hearing all the evidence.
What costs are recoverable? All costs are at the discretion of the judge, but a successful claimant can expect to recover the issue fee, the allocation fee (if applicable), his/her travelling expenses to court and those of any witnesses together with some witness expenses for going to court (up to £50 per day at present). If a claimant loses, he/she will probably be ordered to pay similar travel and witness expenses to the defendant.
Legal costs (charged by Solicitors) are not recoverable in the Small Claims Court, so even if you win, you will have to pay any lawyers you hire to represent you. If you are claiming a relatively small amount, you could wipe out any money you win by the fees you have to pay your lawyer. This is the very reason that the small claims procedure is designed to be less formal so people are able to represent themselves.
Golden rules of doing it yourself 1. Make sure the Particulars of Claim are accurate and as complete as possible while still being concise. 2. Make sure the particulars are well laid out and easy to read. Judges are only human, and the easier the paperwork is to read and understand, the more likely you are to get your point across. 3. Do not miss direction deadlines. While the judge can and often does accept evidence which is late being filed/served, you will never annoy a judge by complying with his earlier directions, and can justifiably object if the other party does not file statements or documents before the trial and then asks they be included on the day. 4. Arrive early for the hearing and make sure you are well presented. We all like to take it easy at the weekends, but a shirt and tie will do no harm when trying to impress the judge, particularly if your opponent turns up looking like he’s just slept in his clothes. 5. Prepare your case before you get to court. Consider what points you want.to get across to the judge and make notes with bullet points or reminders.so the things you want to say come over well. Long silences while you.rustle through your papers to find your arguments will not help your case.as the judge’s attention will start to drift. Be concise and as politely direct.as possible. 6. When giving your evidence, answer only the question you are asked by the.other party or the judge, even if it is a yes or no answer. If the judge wants.further information, he/she will ask for it. Giving the opponent too much.information may harm your case as the other side may have missed a vital point, which could help them. 7. Listen to the judge and adapt to him/her. Ask the judge whether he/she.has read the paper you are referring to at any given time, such as a witness.statement. If he/she has, take him/her only to the specific points you want.to be made separately. Laboriously going through the whole statement verbatim will only annoy the judge.
I once appeared in a small claim where the judge asked the parties to take the witness statements filed in the case as evidence in chief (as if the witness had just said the contents of the statement). The other side’s barrister then spent 40 minutes going through two statements word by word directly in contravention of the judge’s express instruction. This did the other side’s case no good at all. The moral of this story is that if the judge gives a direction that the statements, or other documents, do not need to be considered closely, do not do it.
This is not an exhaustive guide and should not be considered as such. If you’re thinking of making a small claim, call Neil on 01553 660033 for some straightforward advice.
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